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An Update on the National Popular Vote Movement and Other Election Reform As the 2012 Presidential Election Looms

With the Obama-Romney election nearly upon us, my column today updates readers on the status of various presidential election reform efforts (a topic about which I have written columns for this site in the past).

A number of initiatives that were undertaken over the last year fell apart.  The online third party effort, Americans Elect—a movement that strove to put a “nonpartisan” (or in reality, a bi-partisan) presidential/vice-presidential candidate slate, determined by citizens around the country who participate in an “online convention,” on the ballot in all 50 states—fizzled.  So too did partisan efforts in Pennsylvania and Nebraska to change the way in which those two states will divvy up their blocks of electors in the so-called electoral college in the 2012 election.  And the coordinated National Popular Vote (NPV) movement about which I have written a great deal, both in academic literature and in online columns, has not picked up any new state participants since California got the plan nearly halfway to national success by adopting NPV legislation over a year ago.  (For those who are unfamiliar with the basic structure of the NPV plan, this column from 2011 should provide sufficient background.)

It is not surprising that very little election reform—or any other significant government business—gets accomplished in an election year; election years are known for legislative gridlock generally, and election reform often raises concerns about partisanship and election-result manipulation (as is true, for example, with some of state voter-ID laws that have been adopted in the last few years).

The NPV and the 2012 Election: The Election Will Surely Feature Many Ignored States, and Could Result in a Possible Inversion of 2000

But the 2012 presidential election cycle is far from irrelevant to the future of election reform.  Take the National Popular Vote movement.  The plan has two big selling points:  One is the idea that everyone’s vote throughout the country should, as a formal matter, be counted equally; the other is that the way the electoral college currently operates (largely because of winner-take-all rules in most states) tends to make only “swing” or “battleground” states relevant to the two major candidates.  As a result, all the other states—and their particular needs—get very little attention during the campaign season.

This is a powerful critique of the current system in any election year, and it is especially illustrated by this year’s election dynamics.  There are only roughly nine out of the 50 states where Romney and Obama have any real reason to spend time and make promises, leaving the rest of us more or less neglected by the person who will become President.  If this pattern (of the candidates’ focusing on a small and/or shrinking number of battleground states) persists (and I should acknowledge that some think it might not, depending on demographics), then the incentive of the neglected states to try to tweak the present system should grow.

Perhaps even more important for the chances that the NPV coordinated-state movement will succeed is the specter that Governor Romney will, in 2012, win the national popular vote but lose in the electoral college.  A number of political analysts and pollsters say that this is quite possible (in the same way that, in 2000, George Bush (R) became President even though Al Gore (D) won more votes nationwide.)

Why might a Romney popular-vote-win/electoral-college-loss affect NPV’s prospects?  Because up until now, all of the states that have adopted the NPV bill have been Blue states—states that are generally assumed to lean towards the Democratic, rather than the Republican, candidate for President.  And unless a Red state joins soon, it will become increasingly hard to debunk the (wrongheaded) fear that Red state folks have that the National Popular Vote bill is a Democratic scheme, rather than a democratic idea.

The reality is that, during this window in American history at least, a move towards a national popular vote would not benefit or hurt either party in particular.  It is true that a Democrat was stung by the conventional electoral college operation in 2000, but even in that year, things could just as easily have been the other way around (and indeed many analysts predicted before that election that they would be the other way around, with Bush winning the popular vote but losing the presidency.) And in 2004, President Bush won reelection by beating Democrat John Kerry by about 3 million votes nationwide, and yet if Kerry had won just over 60,000 more votes in Ohio away from Bush, Kerry would have prevailed under the current electoral college system.

So there is nothing inherently partisan about the modern national popular vote movement. Given the competitiveness of the two parties nationwide, and given the reality that if a national popular vote system were in place, both campaigns would build their strategies around it, there is no reason to expect that adoption of the NPV system would, if put into effect, benefit one party over the other.

But while some prominent Republicans (like Fred Thompson, a 2008 Republican Presidential candidate and former U.S. Senator; former Republican Governor Jim Edgar of Illinois; and the Republican-controlled state Senate in New York, all of whom support the NPV idea) understand all this, the compelling theoretical case that the electoral college could bite the Republican presidential candidate, just as it bit a Democrat in 2000 would be immensely buttressed by a real-world modern data point. For instance, if Romney were to suffer the same fate in 2012 that Gore did in 2000, that might be sufficient to put some Red states into the NPV column.

The Question of the Need for Congressional Approval of NPV State Coordination

If NPV does attract new states in 2013 and beyond, the question of whether Congressional approval is required before the plan goes into effect will take on greater salience.

The Constitution does require that Congress approve some interstate agreements/compacts before they go into effect, but the Court’s case law is very underdeveloped in this area.  The most comprehensive analysis came in the late 1970s, in a case in which the Court held that Congressional approval was not required with respect to a multistate tax commission that made recommendations that various states could then consider adopting.  The Court there said that the two key factors in determining whether an agreement between two or more states requires Congressional approval are whether the agreement threatens (1) the supremacy of the federal government, or (2) the sovereignty of non-signatory states.  Because the tax commission at issue in the case before the Court did neither—and essentially allowed each state to accomplish no more than it could absent the agreement—no approval by Congress was required.

It could be argued, on one hand, that the coordinated NPV plan should not be subject to the Congressional approval requirement; under Article II of the Constitution, each state is free to allocate its electors however it chooses, and so states’ making their allocations contingent on what other states are doing may not be objectionable, especially since the signatory states are not trying to exclude or in any way discriminate against the non-signatory states.  (It may be important in this regard that all states are welcome to join the NPV coordination, and that the national popular vote tally is based on voter preferences in all states, not just the ones that have embraced the plan.)

On the other hand, the NPV plan that states have been adopting does give signatory states the right to do something that they could not do absent the plan: enforce a right to prevent other signatory states from changing their allocation methods late in the election cycle.

Moreover, to the extent that the NPV plan is sold—and viewed—not just as a way to make everyone’s vote in the nation equal (my preferred rationale), but also to enhance the attention paid to currently neglected states that are urged to join the plan for that selfish reason, the plan may begin to look like a campaign-attention power-grab by signatory states vis-à-vis the other, non-signatory states, implicating the Supreme Court’s state concern about interstate federalism.

But the Supreme Court has not spoken much on these issues in over three decades, and its most recent important rulings were handed down by a Court that included none of the members of the current Court.  So the question whether the Court would find Congressional approval required for coordinated state action here is somewhat open.

Might One or More States Move to NPV Unilaterally?

Meanwhile, there is, at least in theory, the possibility that a state could consider allocating its electors to the national popular vote winner, rather than to the candidate who won the most votes in that state, regardless of whether other states are doing so.

I have speculated on this possibility in an earlier column, in which I asked whether a swing state (like Ohio) might be convinced to act selflessly in order to effectively bring about NPV.  At a recent election-reform conference I attended at M.I.T., I learned of some work that is being done by voting-method luminary Steve Brams (of N.Y.U.) and one of his colleagues, that might suggest that some states could have selfish reasons to adopt an NPV approach unilaterally, insofar as a move by a presently ignored state to allocate its electors to the national vote winner might increase that state’s own campaign clout.  I hope to explore that possibility in greater detail in a future column, after next month’s election.

Vikram David AmarVikram David Amar, a Justia columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.
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